Destroyed Documents In NSA Surveillance Case Under Investigation

An investigation is underway to determine whether the Pentagon improperly destroyed documents related to a whistleblower case. Pictures is National Security Agency headquarters in Fort Meade, Maryland. Photo: Getty Images

WASHINGTON -- Government watchdog agencies are looking into whether officials at the Pentagon improperly destroyed evidence documenting whistleblower cases, McClatchy reported Monday. The documents in question involve the 2011 prosecution of Thomas Drake, who was charged under the espionage act with leaking documents about National Security Agency surveillance to the media.

The investigation centers on whether Pentagon officials were right to destroy documents related to Drake’s case in 2011. At the time, officials said they were destroyed “pursuant to a standard document destruction policy.” Most federal agencies are required to keep schedules that detail which documents should be retained and which can be destroyed.

But Drake’s attorneys say they recently learned during the course of another case those documents were destroyed outside the regular destruction process. It's one of a slew of questions that have been raised about government’s ability to destroy documents that are potentially being used to investigate them.

In February, questions were raised about New York Gov. Andrew Cuomo’s decision to destroy emails amid a federal probe. Hillary Clinton has been bogged down by criticism for destroying emails on a personal server that might have included some reference to her work as secretary of state. Her office insists only personal emails were removed from the server.

In the Drake case, in a letter to a magistrate, the Justice Department said an investigation was taking place. U.S. Magistrate Judge Stephanie Gallagher was already investigating allegations the documents had been destroyed based on complaints from Drake’s attorneys. Administration officials told the judge that they are investigating misconduct by the inspector general offices and the Office of the Special Counsel is looking, two federal agencies that investigate whistleblower complaints.

“DOD OIG’s [Defense Department Office of Inspector General's] handling of documents ... is within the scope of an ongoing inquiry by the Office of Special Counsel,” Raymond Hulser, the chief of the Justice Department’s Public Integrity Section, wrote Gallagher in a letter dated June 11, which was obtained by McClatchy. “In the event that OSC finds evidence of criminal conduct during the course of its work, it will refer that evidence to the Department of Justice for appropriate action.”

Drake was accused of leaking information about the NSA’s surveillance program. A former member of the military and high-level NSA executive, Drake was accused of leaking information about the Trailblazer program, which sought to sift through large amounts of Internet data.

The case, which drew national attention as Drake was accused under the Espionage Act, a novel prosecution for the administration. The case seemed over in 2011 when Drake pleaded guilty to a misdemeanor. Gallagher was asked by the judge in the original case to conduct the review although it’s unclear what ramifications it could have since no prosecutorial misconduct is alleged.